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Practical Strategies for Defense in Malpractice Lawsuit Case


									Reflections and Humanities

          Practical Strategies for Defense in Malpractice Lawsuit:
                             A Case Illustration
                                                   Kwang-Ming Chen

        Abstract- This report describes an unprecedented malpractice litigation on a neurology case. A young
        woman developed multiple complications after a simple hysterectomy: pan-peritonitis, post-op deep coma
        with hypotension, generalized anasarca, hyponatremia, hemolysis, cerebral hypoxia and renal shutdown
        requiring dialysis and multiple-unit blood transfusions. She survived 43 days in Neuro-ICU, and was trans-
        ferred to a regular ward where she developed status epileticus lasting for 17 hours. On examination, she had
        cortical blindness, which the plaintiff believed it was caused by prolonged seizures but actually hypoperfu-
        sion/hypoxia of the brain did it. Plaintiff’s attorneys jumped to a lawsuit for $80+ millions, accusing defen-
        dant for failure to stop her seizures. They took the plaintiff to Honolulu and San Diego to confirm brain
        injury. Results: On the top of calcarine infarct, she has pseudoseizures or malingering. To inflate the claim
        for compensation, they cleverly included three guardians ad litem as co-plaintiffs who live in U.S. Mainland.
        The first court battle was denied at Guam Superior Court on the ground of exceeding one year of Statute of
        Limitation. Cunningly they manipulated clinical course to stretch the date of discovery of damages in order
        to move the statute of limitation within one year of filing to the court. They then went on to Guam Supreme
        Court, where it was struck down. Unconvinced, they went on all the way to the Federal Ninth Circuit Court
        in California where again it upheld the original decision. The plaintiff lost and never reached the trial court.
             After two years’ legal combat, I have learned hard way defense strategies: (1) Practice defensive medi-
        cine, to keep informed consent and tracks of timing of diagnosis and treatment; (2) Avoid factors that may
        provoke dissatisfaction, anger, or frustration on outcome of treatment; (3) Keep ledger of ambulance chasers
        and good defense lawyers; (4) Never surrender at the notification from court; (5) Settle out of court, if this
        can be done reasonably to save time and stress; (6) Keep cool and study carefully the allegations; (7)
        Consultation with experts in the area involved; (8) Set up trust fund for children; (9) Buy liability insurance
        and take CME in medicolegal classes.

        Key Words: Status epilepticus, Pseudoseizures, Hypoperfusion, Plaintiff, Guardian ad litem, Statute of
                   limitation, Ambulance chaser

                                                                                Acta Neurol Taiwan 2009;18:213-226

From the Guam Memorial Hospital, University of Guam Aging         Reprint requests and correspondence to: Kwang-Ming Chen,
Studies Institute, Guam.                                          MD. P.O. Box 7854 Tamuning, Guam 96931.
Received June 17, 2009. Revised and Accepted June 20, 2009.       E-mail:

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

     Malpractice litigation, hitherto unheard of on Guam,      Mainland in 1970s and 1980s.
began to prevail on practicing physicians during the past           The establishment of Guam Legislature and the
two decades. Like ten-foot-tall sea hags, fretted by tiny      Judiciary System by the civilian government had intro-
defenseless islanders for centuries, the ‘ambulance            duced cumbersome official procedures and red tapes.
chasers’ on island and off-island have overwhelmed             Naturally the numbers of lawyers and legal personnel
Guam in recent history. In one instance just past, I was       had skyrocketed over the years, outnumbering the physi-
almost swept away by the torrents of legal maneuvering         cians in a population of 150,000 by year 2000.
forces into the Pacific Ocean, were my able attorney had            Health care system of guam. The ancient
not come to my rescue.                                         Chamorro resorted to folk healers and witchcraft until
     This is a painful journey of my legal entanglement,       1898 when U.S. Navy took control of Guam. The
in a protracted and expensive malpractice lawsuit. As an       Surgeon General of U.S. Navy reported to the Secretary
ordinary practicing physician, having devoted to help          of Navy on the health condition of the ‘La Drone Island’
people suffering from incurable neurological diseases in       (Island of Thieves) that it was infested with ‘hereditary
this Western Pacific Isolate, I did not have primer in         paralysis’ and ‘syphilis’. In 1901, Navy established a
medico-legal aspects of practice. I was not prepared at        hospital compound in Agana. The postwar health care
all. Here I describe in detail my personal experience in       for the islanders was solely provided free by the Naval
going through the ordeal of this nuisance litigation. The      Hospital. After relocating to Oka, Tamuning in 1949, the
story includes the anatomy of the case, the motives of         civilian part of the compound was dedicated to war casu-
plaintiffs, clever legal maneuvering and tactics in sneak      alties as the ‘Guam Memorial Hospital’ (GMH). In
attacks, and their appeals to Guam Supreme Court and           1956, a new 100-bed hospital was built over the Oka
the Federal Circuit Court of Appeal. I hope this writing       Cliff line. Later in 1959, additional building was built for
provides some useful insight in self-defense. (This is a       Public Health. GMH then had a total capacity of 250
true story, but the characters are fictitious)                 beds, ran by the Government of Guam. GMH accommo-
                                                               dated NINDS research on Amyotrophic Lateral
    King Henry VI, “The first thing to do is to kill all       Sclerosis/Parkinsonism-Dementia Complex (ALS/PDC)
lawyers”.                                                      since 1959. It was stricken by financial foes, lack of
    Shakespeare 1965: New York. Cambridge Univ.                well-trained medical providers, and equipment. No CT
Press(1).                                                      scanner was available until 1982 when NINDS donated a
                                                               used one. It took 4 years to replace a 4th generation
                  BACKGROUND                                   Picker whole body scanner in 1987. Under AMA, GMH
                                                               received conditional certificate by Joint Commission on
    After WW II, U.S. Navy took over control of Guam           Accreditation of Hospitals (JCAH) in 1982, but has
in 1945. President Truman signed the Organic Act in            never regained it to this date.
1951, relinquishing U.S. Navy control of the government             It was inconceivable and foolish that I, with my
to the civilian hands. Americanization of Guam began -         training and experience, would work for this inadequate-
education, health care, banking, and civilian business         ly equipped, understaffed, poorly managed, and money-
outside of military compound. With setting up of               in-the-hole hospital and get rotten professionally. But in
Immigration & Naturalization Services in 1962, influx          reality I became a jungle doctor in this isolated tropical
of outsiders - Caucasians as well as Orientals, population     island thousands of miles away from the mainstream of
rapidly mushroomed. Vietnam War debacle in 1974 had            medicine. I worked half time for GMH and the other half
brought in more immigrants and Guam rapidly moved              for NINDS research in order to keep up with my training
into economic boom on one hand, but also became the            at Mayo and experience with neuro-epidemiology. So I
transport center of drugs from Southeast Asia into US          had to perform family practice in addition to basic neu-

                                  Acta Neurologica Taiwanica Vol 18 No 3 September 2009

rology and research. I became skillful in giving a first        immigrations and business transaction. Malpractice liti-
aid, splintering fractured arm or leg, or suturing lacera-      gation was literally unheard of until influx of immigrants
tions of trauma cases, head injury from falling coconut         and progressive changes in socioeconomic environment.
or out of moving pick-up trucks. I could even find out          In 1970s, a young lawyer from Oregon tied up with local
that the ethnicity of a victim’s assailant by inspecting the    Atty. L. ‘handled’ a multi-million real estate inheritance
injury. I was the only neurologist who could determine          a wealthy Chinese-Filipino businessman left behind.
brain death of patients in the ICU. I also took care of         This man allegedly wrote a will to each woman who
advanced ALS patients with dysphagia or respiratory             lived separately in Guam, Manila, Hong Kong and
failures. I saw many bed-ridden PDC patients with               California to receive his estate. It turned out that each
extensive decubitus sores in the sacrum, scapula, both          one claimed she was his legitimate wife and was entitled
hips and feet with foul smelling juice seeping out con-         to inheritance. Grueling legal battle made these two
stantly. Some were infected with maggots in the under-          lawyers pocketed more than 85% of estate and the
mined edge of sores or ants crawling all over the body in       Oregonian vanished from Guam, according to local
shabby shacks. I sought all kinds of remedies, Western          newspaper. By 1990, the lawyers already outnumbered
and Oriental, trying to contain the sores in vain, because      the physicians. The malpractice lawsuit against health
pressure deprived blood supply and the failing autonom-         providers and hospitals has become one of the most sig-
ic nervous system crippled body’s ability to repair. High       nificant constraints affecting the health care system of
protein diet, heat lump, and proteolytic ointment applica-      this island. In 1996, Guam legislature passed a law on
tions did not help either. I learned that fairly effective      the Statue of limitation of one year for recovery of dam-
remedy called Betadine-sugar paste, which was readily           ages and mandatory arbitration before litigation in the
available at GMH. Sugar pickles the necrotic tissue and         court.
Betadine solution disinfects.                                       The judiciary system of Guam patters after
     As the off icer-in-charge of NINDS, I followed             California, called English system, which is different
through countless PDC patients. I was able to complete          from Taiwan, Japan or Europe, which applies
the description of the natural history, which was pub-          Continental system. The process includes:
lished in the Handbook of Clinical Neurology in 1986.
In addition I began to see Alzheimer’s disease and vascu-       Step 1. Accusation by plaintiff to the local court;
lar dementia on the rise. I single-handedly continued to        Step 2. Arbitration by plaintiff and defense attorneys
monitor the occurrence of ALS/PDC and treat them free                   and a neutral third party. If no settlement out of
of charge at my clinic from 1983 to 1990 when a                         court, then go to
National Institute of Aging (NIA) grant was awarded to          Step 3. Jury trial. The court appoints jurors by random
Mayo Clinic to reactivate research on Guam for next five                selection.
years. The result was no way nearer to the solution of the      Step 4. Appeal courts-local Supreme Court and federal
century-old Guam mystery. However, it was clear that                    circuit court.
ALS was disappearing from Guam. I reported this in the
35th Japanese Neurological Society Meeting in Nagoya                Here I describe my encounter with unprecedented
in May 1995. On the other hand, it is sad to see “ambu-         multimillion-dollar malpractice lawsuit by a Filipino
lance chasers” prosper and flourish on Guam in recent           plaintiff, filled by two notorious prosecution lawyers
years.                                                          from Hawaii.
     This was the story of a jungle neurologist on perma-
nent exile to Guam.                                                              CASE MATERIAL
     Malpractice lawsuit on Guam. Back in 1960s there
were a handful of lawyers on Guam who dealt with                    On 12/24/96, I received a Superior Court of Guam

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

Order (CV1607-96) to answer an accusation by a                   ther medication. However, the additional medication did
Filipino patient for “negligence” in treating her “status        not stop the seizure activity.
epilepticus”, which was caused by complications from                  The following day, on 3/28/94, Chen returned to
abdominal surgery. It was in essence asking for a jury           GMH and was finally able to stop the seizures, which
trial. The plaintiffs were: (1) the patient’s sister, Victoria   had continued unabated for approximately 17 hours. As
S. Custodio, individually and as Guardian Ad Litem for           a result of the length of the seizure activity, Chen discov-
Teresita S. Custodio, an invalid, and Benjamin A.                ered that the plaintiff suffered severe and irreversible
Custodio, an invalid father of patient, and (2) her mother,      brain damage, including cortical blindness.
Estrella Hernandez, individually and as the Guardian Ad               Subsequent to the diagnosis of her brain damage,
Litem for the invalid daughter, Teresita S. Custodio and         Chen accepted primary care for her follow-up medical
her invalid husband, Benjamin A. Custodio.                       treatment. On several occasions, Chen was confronted by
     The plaintiff Victoria was one of duly appointed            further “status epilepticus” (actually a partial seizures),
Guardians Ad Litem for sister, Teresita and Benjamin,            and failed to prevent or stop the seizures in a medically
invalid father of Teresita. They all lived in Guam.              significant or reasonable period of time, causing further
Plaintiff Estrella Hernandez who lived in San Diego, was         brain damage. (False accusation)
other duly appointed Guardian Ad Litem for both                       Defendant Chen’s conduct constitutes professional
Teresitra and Benjamin. The plaintiff’s attorney claimed         malpractice and negligence, falling below the applicable
Teresita was so sick that she could not represent herself.       standard of care for medical treatment.
     The plaintiff ’s attorney accusation (CV1607-96)                 As a legal and proximate result of defendant’s negli-
wrote:                                                           gence, Plaintiffs Victoria and Estrella are entitled to
     On 2/7/94, a hysterectomy was performed on plain-           compensation on behalf of Teresita’s for past and future
tiff at GMH. Following said operation, it was discovered         medical expenses, past and future wage loss, other out-
that her bowel had been perforated. Surgery to repair the        of-pocket expenses, pain and suffering, severe emotional
bowel was performed on or about the early morning of             distress and mental anguish, the loss of future enjoyment
2/13/94 at GMH.                                                  of life, and other special and general damages allowed by
     Due to complications from these operations, she             law in the amount of $25 million dollars or in such
began to experience multisystem failure, and was admit-          amount as is proven at trial.
ted to the ICU to undergo further procedures. (Defense’s              As a legal and proximate result of defendant’s negli-
note: She in fact went into prolonged coma from septic           gence, Plaintiff Victoria has been required to provide 24
shocks and hypoperfusion of the brain, which required            hour care for patient and has sustained additional injuries
hyperalimentation, multi-unit transfusions and hemodial-         and damages, and is thus entitled to compensation for
ysis.)                                                           past and future medical expenses, past and future wage
     In mid-March, her health had improved and she was           loss, other out-of-pocket expenses, pain and suffering,
transferred to a regular ward. On or about 3/27/94, she          severe emotional distress and mental anguish, the loss of
began to have continuous grand mal seizures. Defendant           future enjoyment of life, the loss of consortium, society,
Chen was contacted for the first time to perform a neuro-        companionship and affection, and other special and gen-
logical consultation. Chen ordered additional anticonvul-        eral damage allowed by law in the amount of $10 million
sant but did agree to take over the care. The medication         dollars, or in such amount as is proven at trial.
he ordered was insufficient to stop the seizures, which               As a legal and proximate result of defendants’ negli-
continued unabated.                                              gence, Plaintiff Estrella has sustained injuries and dam-
     On several occasions later that day, GMH personnel          ages, and is thus entitled to compensation for past and
informed me about the unabated seizures. Instead of              future medical expenses, past and future wage loss, other
returning to GMH, he simply telephoned orders for fur-           out-of-pocket expenses, pain and suffering, severe emo-

                                    Acta Neurologica Taiwanica Vol 18 No 3 September 2009

tional distress and mental anguish, the loss of future          1995 (CV207-95), who performed a simple hysterecto-
enjoyment of life, the loss of consortium, society, com-        my and allegedly caused her peritonitis on February
panionship and affection, and other special and general         1994. With the help of two Hawaiian ‘ambulance
damages allowed by law in the amount of $10 million             chasers’, and a Canadian neurologist as an expert wit-
dollars each, or in such amount as is proven at trial.          ness, her lawyers filed a similar suit against me. It was
     As a legal and proximate result of defendants’ negli-      about the plaintiff ’s hypoxic encephalopathy secondary
gence, Plaintiffs Victoria and Estrella are entitled to         to a month long post-op coma, multisystem failures and
compensation on behalf of Benjamin (patient’s father)           cerebral hypoperfusion causing prolonged seizures. They
for past and future medical expenses, past and future           accused me of wrongdoing that I could not stop her pro-
wage loss, other out-of-pocket expenses, pain and suffer-       longed status epilepticus and brain damage.
ing, severe emotional distress and mental anguish, the              What an accusation! My lawyer told me this was
loss of future enjoyment of life, the loss of consortium,       unprecedented suing for $80 million plus cost and attor-
society, companionship and affection, and other special         neys’ fees, and so on. He told me that accusation was
and general damages allowed by law in the amount of             nothing but a gross distortion of the fact and threats to
$10 million dollars, or in such amount as is proven at          dip into a deep pocket.
     Defendant Chen’s conduct is so grossly negligent,          The followings are my rebuttals:
reckless, and devoid of any consideration for the rights        1. Why should I assume the responsibility of the out-
and safety of Plaintiffs, that Plaintiffs are entitled to an       come of a laparatomy and prolonged coma from peri-
award of punitive damages against defendants in the                tonitis? Consultant provides only suggestions and
amount of to be proven at trial. (Exaggeration)                    advice in regard to the treatment of the complication.
     Wherefore, plaintiffs pray for relief against defen-       2. How could the plaintiff ’s lawyers dare list every 0.5
dants, jointly and severally, as follows:                          living relatives living on Guam and overseas as co-
1. Special and general damages in the amount of $25                plaintiffs for individual claims?
   million for Plaintiffs Victoria and Estrella on behalf of    3. Why do her parents who reside in California need
   Teresita;                                                       compensation and support? At their age and ‘invalid’
2. Punitive damages in the amount of $25 million for               state, they must have received welfare and food
   Plaintiffs Victoria and Estrella on behalf of Teresita;         stamps, as well as medical assistance, such as
3. Special and general damages in the amount of $10                ‘MediCal’, paid by the US Government. I am sure
   million for Plaintiff Victoria individually;                    when they applied for governmental assistance, they
4. Special and general damages in the amount of $10                had to claim they had no family to support them, or
   million for plaintiff Estrella individually;                    having no income or ability to earn a living - a com-
5. Special and general damages in the amount of $10                mon practice of the immigrants to this country. So it
   million for Plaintiffs Estrella and Victoria on behalf of       is a flaw in including them as dependents.
   Benjamin;                                                    4. How could the lawyer list claims for compensation
6. Costs and attorneys’ fees incurred in the litigation;           not only for bodily damages but also for all imagin-
   prejudgment and postjudgment interest; and any addi-            able psychological and sociological ‘sufferings’, past,
   tional and further relief deemed just and appropriate           present and future, by every guardian? $80 millions
   under the circumstances.                                        plus litigation fees and interests, which may outlast
     Dated: 12/01/96. Signed by three Attorneys for                their life? What a convenient tactic to inflate the mal-
plaintiffs.                                                        practice claims.
     This was filed almost two years after the plaintiff        5. The accusations were gross exaggeration and distor-
had already filed a suit against her gynecologist on Jan.          tion of the fact, which can be contested in court.

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

6. The wording of accusation is nothing but threats. The            were professors of neurology from UC San Diego,
   tactics they used were (1) Intimidation of the defen-            Mount Sinai School of Medicine, University of
   dant to settle out of court; (2) Doctor had deeper               Hawaii, and Mayo Clinic. As I concluded from my
   pocket to go; (3) Strong back-up by an expert witness,           own intensive review, the brain injury (cerebral
   a neurologist and good friend of plaintiff; and (4) To           hypoperfusion, prolonged seizures and resultant corti-
   take advantage of no capping in the malpractice award            cal blindness) had begun long before I was called in
   by the jury in this country.                                     for consultation to control plaintiff ’s status epilepti-
Discovery phase I                                              4.   Dr. X, a well-known disruptive physician at GMH,
     Attorney Gary Hull was our long time acquaintance              was Plaintiff ’s family friend, and had closely moni-
and trusted lawyer. He informed me that the case had                tored her entire hospital and outpatient course. He
been going on for over one year against gynecologist                wrote a 48-page inflammatory ‘expert witness report’
who performed total hysterectomy, which unfortunately               to the plaintiff’s attorney to initiate this suit(5). It was a
complicated with peritonitis. Atty. Hull’s opinion was              year and ten months after the plaintiff filed a suit
that my case could win through, but it might be an                  against her gynecologist whom was accused of caus-
expensive, protracted legal battle, needing an off-island           ing dreadful peritonitis after a total hysterectomy on
expert witness later when the case comes to an arbitra-             February 1994.
tion, as required by Guam law.                                 5.   Her recurrent ‘seizures’ after her dismissal from the
1. The plaintiff ’s lawyer was a notorious ‘ambulance               GMH Skilled Nursing Facility (SNF) was actually
   chaser’ on Guam whom I had the first encounter back              categorized by the experts in UCSD as ‘pseudo
   in 1972 when I was an ER staff at GMH. He wanted                 seizure’, which was a polite way of saying malinger-
   me to write a report of a rare-end collision victim and          ing. While under the care of the plaintiff’s witness and
   demanded I exaggerate the extent of injury, so that he           primary care physician, she kept coming back to my
   can collect more from insurance company. (Fresh                  clinic with computerized medical records.
   from graduation, he was literally an ambulance chas-        6.   Plaintiff secretly prepared to sue me by going to
   er!) He hired two more ‘chasers’ from Honolulu.                  Honolulu and San Diego. During this period, she
   They tactfully twisted and exaggerated the fact. They            intermittently visited my clinic, asking for certificate
   conveniently fabricated the clinical course and the              of disability to apply for social security benefit and
   outcome that I was totally responsible for it.                   local governmental assistance. Actually she was gath-
2. Statute of limitation for action to recover damages              ering evidences of damages from surgery. I naively
   was one year from the date of discovery of damage(2).            accepted her sister’s computerized progress notes and
   it was beyond one year when they filed.                          took them as honest observations. Later I discovered
3. For the next four months, I reviewed over 4,000-page             that it was a ploy, coached by her attorney and Dr. X
   documents including the plaintiff’s voluminous med-              to provide evidence of seizure activities after dis-
   ical records at GMH, the off-island medical referral             charge from GMH, in order to extend the statute of
   reports, the depositions of all related physicians and           limitations of one year from the date of discovery of
   nurses, diary of plaintiff after discharge from GMH,             injury.
   and medical certificate from her primary physicians. I      7.   My attorney decided to file a dismissal petition,
   meticulously plotted graphics and charts of her clini-           instead of surrendering to a jury trial, to the Superior
   cal events so that I could present her case at                   Court on January 7, 1997. He knew there was a
   Arbitration Board, mandated by Guam law. I consult-              Recovery Rule on Guam, which stipulates a statute of
   ed with neurology experts whom I have acquainted                 limitation of one year from the discovery of perma-
   with over the years from ALS/PDC Research. They                  nent damage(2-4).

                                  Acta Neurologica Taiwanica Vol 18 No 3 September 2009

     Clever Legal Maneuvering. Atty. Hull informed me           lay on both mental and neurologic examinations. Dr.
that the plaintiff ’s lawyers f iled an amendment on            Kritchevski commented that were it not for neuroimag-
January 17, 1997 requesting for arbitration as required         ing tests, he would suspect that the patient had entirely
by Guam Public Law. (It was stupid for them of not              or predominantly functional illness. These reports indi-
knowing arbitration law exists on Guam) They also mod-          cated: (1) Date of discovery of brain damage was as
ified the accusation of negligence to extend into her out-      early as 10/12/94; (2) If she was truly faking her seizures
patient period after discharge from GMH Skilled                 and visual symptoms, she must have been coached to do
Nursing Facility. Again, this was a malicious legal             so. When I examined her eyes, her eyes kept moving
maneuver. Atty. Hull assured me that things were under          around. She must have fooled ophthalmologists in
control. His strategy was to file for dismissal of the case     Hawaii and San Diego. They thought she had Balint syn-
on the ground that the statute of limitation of one year        drome, which can be easily imitated or faked.
from the discovery of damage had expired long time ago.
     On January 6, 1997, Atty. Hull discovered that the         Discovery phase II
plaintiff went to Honolulu for diagnosis and treatment on           Analyzing the case, the following evidence-based
January 1995. He received records Drs. R. Taniguchi,            facts were discovered:
neurosurgeon, J. E. Liu, neurologist, and J. G. Camara,         1. Inpatient Clinical Course. A young woman with men-
ophthalmologist, dated January 8, 1995. This was the               orrhagia had a simple hysterectomy, which post-oper-
very date of discovery of damage; if the court did not             atively complicated with peritonitis. The condition
accept the day I informed them of cortical blindness on            turned sour after extensive ‘clean-up’ laparatomy by
March 30, 1994. These experts all agreed that the plain-           another surgeon and ended up in prolonged coma,
tiff was a case of brain hypoperfusion during protracted           septic shock, respiratory distress, and multisystem
post-op. complications, and she had eventually stroked             failures. In fact, she had severe low serum osmolality
out, resulting in cortical blindness and status epilepticus.       from hemodilution, hyponatremia, metabolic acidosis
I searched for evidence that she stroked out before I was          and generalized anasarca, which her surgeon and con-
called in to stop the seizures. Oh, lo and behold, the             sultants ignored. She was under intensive care for 33
plaintiff ’s CT scan taken 16 hours before I came in               days requiring multidisciplinary consultants. It includ-
showed definite evidence of cerebral infarct, i.e. hypop-          ed life-saving measures such as Dopamine drips to
erfusion of the brain, in the occipital lobes.                     combat shock, ventilator and, chest tubes insertion,
     On March 6, 1997, my attorney sent me four docu-              hemodialysis, multiple blood transfusions for G-I
ments he obtained as the exhibits at Dr. Sison’s deposi-           bleeding, hyperalimentation, and intravenous infusion
tion. One from Sison was a certification of plaintiff ’s           of mega dose 4th generations antibiotics. It is well
permanent disability dated 10/12/94. One was a reply               known that the prolonged use of closed-control venti-
letter from Dr. Evelyn Tecoma of UCSD Epilepsy Center              lator in a patient with profound shock from multisys-
for consultation dated 12/17/96. The third was a report            tem failure will end-up in a ‘ventilator brain’ - soften-
from Dr. Mark Kritchevski of the Neuro-behavioral                  ing of the brain. This in turn compromises the posteri-
Center dated 2/19/97. They had slightly different diagno-          or cerebral artery circulation to the occipital lobe of a
sis on visual problem - instead of Anton’s syndrome,               patient in a prolonged supine position, thus resulting
they called it Balint’s syndrome, which is characterized           in occipital cortex infarct. During this critical stage in
by (1) cortical or psychic paralysis of visual fixation; (2)       ICU, neurological consultation was never called. As a
Optic ataxia - unsteady eye movement; (3) Disturbance              result, she developed hypoperfusion syndrome, which
in visual attention with preservation of spontaneous and           passed unnoticed until she began status epilepticus
reflex eye movement. In addition, plaintiff showed true            after she was transferred out of ICU. It was her 44th
seizures, pseudoseizures, and significant functional over-         days in hospital when I was called in to help. It took

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

   17 hours to stop the seizures. Two days later on March         referred her to UCSD Epilepsy Center. Each time
   30, 1994, the patient and her sister were notified that        when she went off-island for consultations, I, as her
   she had cortical blindness as the result of stroke and         sole treating physician as they claimed, was not
   seizures. She slowly recovered from a moribund                 informed. I was innocently, or stupidly, tried to help
   state. She was then transferred to SNF on April 18,            her all along by Hippocratic oath. In this case, it was
   1994 and discharged on May 13, 1994. During this               evident that (1) The doctor-patient relationship ended
   period at SNF, her friend neurologist, Dr. X took over         on August 1994; (2) Honolulu consultation on
   the case and discontinued the anticonvulsant. As a             January 1995 confirmed she had cortical blindness
   rule of hospital procedure, the doctor-patient relation-       but mentally not incompetent; and (3) San Diego con-
   ship ended when she was discharged to SNF, or when             sultation confirmed she had had pseudoseisure, not
   the other physician took over treatment.                       genuine epilepsy, and was malingering.
2. Outpatient Clinical Course. The plaintiff ’s primary        3. She also sued GMHP, her insurance carrier, and had
   physician referred to my clinic on May 16, 1994, two           collected $800,000; assistant surgeon for hysterecto-
   days after discharge from SNU. In her return clinic            my who settled for $25,000; and her primary doctor
   visits, she always wore large dark sunglasses and              who referred her to the gynecologist and settled for
   described various kinds of scintillating scotomata. I          $10,000. For the accused gynecologist, they sued for
   was impressed by her knowledge of the syndrome of              $25 million. For my case, the ambulance chasers clev-
   cortical blindness as well as her ability to exaggerate        erly created three more ad litem plaintiffs legally
   her description. She then began to complain bizarre            invalid family members whom the plaintiff allegedly
   seizure activity, for which I had to put her back to           obliged to support and demanded $10 million for
   anticonvulsants. Strangely, the heavier the dosage, the        each, and $50 million for the damage - a total of
   more “seizures” she described. An EEG was negative             record $80 millions, plus cost and attorneys’ fees in
   for seizures. But some cortical activity over the occip-       the litigation!
   ital lobes was noted to respond from photic stimula-        4. A close friend of the plaintiff. Dr. X wrote 48 pages of
   tions. She revisited three months later on October 14,         “expert witness”(6) for this lawsuit. He is a Canadian
   1994 and again on November 26, 1994. In fact she               neurologist who wrote a hit research paper in 1964
   was already preparing to sue me and went to                    and then spent 12 years in Micronesia. In 1983, he
   Honolulu for further consultation with various experts         landed on Guam when the NINDS research center on
   on January 1995. On March 25, 1995 she was read-               Guam had just announced its closure. He took a VA
   mitted to GMH under her primary physician’s care for           job first, but got interested in ALS/PDC research. So I
   more seizures. I was not consulted. Then on April 2,           introduced him to my friends at NINDS. Quickly, he
   1995 she suddenly showed up again with dark glasses,           became an instant expert on AL/PDC. After several
   and right in front of my receiving nurse, she had a            years, he was fired from VA. GMH then hired him as
   bizarre seizure, which was grossly hysterical. Her last        medical staff in 1986. He was non-compliant to med-
   visit was on May 2, 1995, still having bizarre visual          ical staff ’s bylaws where he was known as an
   symptoms and seizures, she claimed. Her sister, a co-          impaired, disruptive physician.
   plaintiff, turned in long lists of meticulously recorded            Then in 1991, Dr. Leonard Kurland of Mayo
   clinical events in computer printouts to be included in        Clinic, the principal investigator to reactivate
   her medical records from June 1994 to March 1996. I            ALS/PDC research at University of Guam, hired him
   believed it as a genuine description of her condition,         (by mistake, he told me in 1994) as the regional
   but it turned out to be a trap to make-belief that I am        research director. University of Guam (UOG) received
   still responsible for her cortical blindness and subse-        $330,000 per year for next 5 years from National
   quent seizure disorder. On November 22, 1996, Dr. X,           Institute of Aging (NIA). Dr. X also received local
   who apparently had been advising her all along,                appropriation from Guam Legislature to be added to

                                  Acta Neurologica Taiwanica Vol 18 No 3 September 2009

   the research coffer. Unfortunately he could not carry             so ‘convincing’ that Plaintiff’s lawyers were confident
   out the required research protocols and wanted to                 they had the case(6). It was discovered that he was not
   keep the local appropriation for his own use. During              only an impaired physician at GMH, but also disrup-
   the International Symposium held at Okura Hotel on                tive researcher at UOG.
   2/1992, he invited a local anti-federal activist to          2.   Dr. Tecoma of UCSD suspected the Balint syndrome
   denounce the ALS/PDC research. He then moved out                  and pseudoseizures on the top of visual seizures. She
   UOG lab without resignation, but tied up himself with             recommended perimetry and neurobehavioral consul-
   Univ. of British Columbia team. He shipped out with-              tation.
   out NIA approval a number of valuable research spec-         3.   Dr. Kritchevski of the neurobehavioral Clinic, UCSD,
   imens to Canada and England at the expense of Guam                reported on February 27, 1997 a major depression and
   research budgets. On April 1994, he was formerly                  “significant functional overlay” in both mental and
   fired. In anger, he accused UOG of conspiracy and                 neurological examinations, meaning that she had a
   discrimination and asked the Guam 23rd legislature                possible hysteria or malingering.
   for an oversight hearing(6). On October 3, 1995. It tran-    4.   When Dr. X was asked about Kritchevski’s report, he
   spired that, in his preoccupied ideation that nobody              was furious, face turned red, wielded his fists and
   but him could conduct medical research on Guam,                   yelled: “I am not aware of the report. (He was lying).
   and I was in his way all along. He turned to this law-            This is the most irresponsible report I have ever seen
   suit in apparent personal vendetta or revenge for his             for a professor to write such a conclusion. I am just
   research setbacks.                                                appalled. It is totally absurd and irresponsible. I will
5. Plaintiff ’s tactics. Summarized here are four vicious            go after him”.
   and deceitful legal maneuvers: (1) To add weight on          5.   Dr. Camara of Honolulu Eye Clinic reported on
   plaintiff ’ claims, her lawyers created three ‘invalid’           January 1995 was correct. He suspected functional
   guardians ad litem on November 23, 1994; (2) The                  overlay on visual disturbances. The electroretinogram
   plaintiff singled me out among half a dozen treating              and pattern shift visual evoked potential were normal.
   physicians as solely responsible for plaintiff ’s dam-            So was the EEG here at my clinic; she had fairly good
   age, and filled the suit separately at a later date,              response from photic stimulations, meaning that her
   because her expert witness’ 48-page report came in                visual cortex was not bad. While she visited my clinic
   late; (3) Knowing the statue of limitation was long               from February 1995 to February 1996, she always put
   over, the plaintiff maintained that the date of discov-           on dense sunglasses and was reluctant to remove them
   ery of the damages was on February 1996 after the                 for my examination on the ground that she was photo-
   report from Dr. X. This was of course a lie. In fact, I           phobic! After an examination, she showed a ‘search-
   personally informed her sister, Victoria on March 30,             ing nystagmos of the miners’. This was not a real
   1994, and again did the consultants in Honolulu on                Balint’s syndrome. I also saw her seizures at the clin-
   January 1995; (4) To stop the clock of one-year statue            ic. They were really bizarre, focal or partial seizures
   of limitation, the plaintiff argued that she was mental-          in front of my nurse.
   ly ‘insane’ which could make the commencement of             6.   After grueling questions by my skillful attorney on
   litigation tolled. Actually the plaintiff was very smart          the details of alleged mismanagement, he did not
   to fake and exaggerate her symptoms.                              know plaintiff ’s body weight and proper dosage of
     Dr. X’s fateful deposition. As part of discovery                anticonvulsants. Nor did he know supplement medica-
process, on 3/8/97, my attorney arranged to depose the               tions other than Dilantin. All he could answer was
plaintiff’s witness. The discovery deposition found:                 standard 1000mg Dilantin IV loading followed by
1. In the 48-page ‘expert’ report to plaintiff’s attorney on         5mg/kg/day as maintenance dose in an otherwise
   November 1996, he accused me of negligence and                    healthy epileptic. He continued to accuse me of
   substandard treatment, etc. It was inflammatory and               ‘substandard treatment’ that resulted in her cortical

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

   blindness, without knowing that in any severe brain-              Two weeks later, Dr. Perl arrived from New York. He
   injured case, no amount of anticonvulsants could stop        found that, in addition to an acute dilutional hyponatrem-
   the seizures - just like the cases with post-cardiac         ia, septic shock during exploratory laparatomy for peri-
   arrest cerebral hypoxia or purulent meningitis, or           tonitis on February 13, 1994, she continued to have
   severe cerebral contusions, it is impossible to stop         hypotension despite of continuous Dopamine IV drips
   seizures. He could not even tell the difference              for over one month, which resulted in peripheral
   between cerebral infarcts and hypoxic encephalopa-           vasospasms. This in turn led to the prolonged hypoperfu-
   thy, or the adverse effects of prolonged metabolic aci-      sion of the brain and renal shut down. The critical condi-
   dosis, renal failure, hemolysis and hypoperfusion,           tion persisted even after she was moved out of ICU while
   hyponatremia, brain edema, and prolonged use of              continued to have hemodialysis. The status epilepticus
   most potent fourth generation antibiotics and so on.         on March 27, 1994 was only the symptom of cerebral
   With a body weight of only 42 kg on March 16, 1994,          insult. This was proved by the daily vital sign charting
   the dosage of 500 mg ordered by Dr. Basilio plus 200         and the CT scan of her head at 1:35 PM the day before,
   mg by me were adequate. He categorically admitted            which indicated hypodensity over the right parieto-occip-
   that he could not do better if he was called in to treat     ital lobe. It was exactly 16 hours before I arrived to take
   her and I did nothing substandard or wrong in treating       care of the convulsions! Dr. Perl was kind to offer to be
   her that day. Incidentally. Dr. X was on hospital back-      my defense witness. Atty. Hull tape-recorded his state-
   up call that day when I was not available that morn-         ment and asked to present in HNL in June if the arbitra-
   ing.                                                         tion takes place.
7. At the conclusion of deposition, Dr. X approached me              Prof. Wiederholt of UCSD told me on 4/16/97, that
   in red-shot faces and wanted to shake hand with me.          Dr. Kritchevski’s diagnosis of ‘pseudoseizures’ was actu-
   My attorney intercepted, telling him: “ Doctor, if you       ally a gross malingering. Drs. Kritchevski and Tecoma
   has something to say to him, you should say it in front      were his Department Staff. When he reviewed the CT
   of me.” He then said: “ I had no intention to hurt you,      scans taken on 3/16/95, the day before I was called in for
   Dr. Chen. It was for neurological science’s shake.”          consultation, he confirmed that there was occipital
   implying that it was an exercise in critical care in neu-    infarct prior to my arrival. He smiled and assured me
   rology. Atty. Hull smiled and said: “Dr. X was our           that there was no case that I was responsible for her brain
   best defense witness.”                                       damage.
    A shot in my arm. The following week on March                    Renewed allegation. On March 21, 1997, two weeks
14, 1997, Dr. Taniguchi decided to help me defend all           after his fateful deposition, Dr. X wrote two-page nota-
the way. He cautioned me: (1) Dr. X was ‘passionate’            rized affidavit to plaintiff’s attorneys(7). It literally repeat-
with the patient, just like he did for ASL/PDC patients.        ed his malicious accusations and adding my treatment
At the trial, the jury may quickly pick it up and sympa-        for her subsequent seizures on Feb. 1995 up to February
thize on the plaintiff; (2) It was wise to insist that the      1996 was also negligent resulting in additional injury
plaintiff had cortical blindness, rather than watershed         and I failed to treat her pseudoseizure and functional
zone infarct or anoxia in hypocampus or cerebellar deep         problems properly. In fact, he took over the case on 4/96
folia. When blood pressure drops, these areas receive           and referred her to UCSD.
insufficient blood supply, resulting in ischemia. It would           This additional affidavit was intended to (1) abrogate
make no difference when it comes to a witness stand; (3)        his admission at deposition of no wrongdoing on my part
The conclusion was to emphasize on her pre-seizure sta-         in his deposition, (2) provide a basis to extend my
tus where she had already infarcted occipital lobes; and        responsibility beyond the plaintiff ’s hospitalization in
(4) The reports from UCSD were correct and on our               case the court agrees no negligence, and (3) push for-
favor.                                                          ward the date of discovery of damage to February 1996.

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

It was tantamount to a perjury under oath. What a slick         ing medical education in advanced neurological science,
psychopath with split personality! What a cunning legal         and strife for higher professionalism and decency were
maneuver by the ambulance chasers!                              all futile and worthless.
     My friends, doctors and attorneys told me that I
could sue Dr. X for defamation and collect all my loss in       Appeal to the Supreme Court of Guam
terms of attorney’s fee and clinic practice, because I had           Unconvinced by the Superior Court’s decision, the
all solid evidence that he was an impaired or disruptive        plaintiff appealed on 9/12/97 to the Supreme Court of
physician. A professor from UCSD once wrote: “He was            Guam. It was within 30 days of judgment as required by
the epitome of ruthless person who had blatantly, for his       law. My attorney had to ask an off-island specialist in
personal gain, abused the trust in him by patients,             appellate court to write an appellee’s brief on December
research subjects, and colleagues. In so doing, he had          31, 1997(12).
inflicted serious and permanent physical and psychologi-             Meanwhile the ambulance chasers repeatedly con-
cal harm. He had violated all ethical and moral standards       tacted my attorney for settlement out of court. The
expected of a physician and researcher. In my 40 years as       appeal was actually another legal maneuver and continu-
a physician and researcher I have encountered my share          ing tactic of intimidation by the plaintiff. I flatly refused
of bad apples. None was as rotten as he”.                       and determined to fight on.
                                                                     The plaintiff’s contention was that:
Landmark decision                                               (1) The tort of one-year statute of limitation should be
     At 11:30 a.m. April 29, 1997, Atty. Hull informed              nullified because she was mentally ‘insane’ which
me that he received Judge Manibusan’s Decision and                  stopped the clock the moment she was diagnosed
Order. It threw the case out of court on the grounds that           ‘insane’. Cunningly citing California law precedents,
1. The statute of limitation of ONE year from the date of           her lawyer insisted that the court was obliged to
discovery of injury has expired: 2. Plaintiff was not               extend the statue of limitations, for there was no
insane, and 3. The doctrines of continuous treatment and            Guam Law defining it on actual case basis.
continuum of negligent treatment do not apply in this           (2) The date of discovery was not March 29, 1994, nor
case; The Judge on 6/05/97 wrote an amendment on the                January 1995 when Honolulu experts told them,
decision and then the final judgment in favor of the                because of being “insane”.
defendant on 8/26/97. IT WAS A MONUMENTAL                       (3) After returning from Honolulu, the plaintiff contin-
DECISION - the first ever in malpractice litigation on              ued to see me for control of her seizure, (although
Guam. It was a 38-pages document with detailed analy-               there was 5 months’ interruption), physician-patient
sis and discussions based on facts and on precedent U.S.            relationship is legally still binding until February
courts decisions. It pointed out that the plaintiff was try-        1996 when her clinic visit was terminated. Therefore
ing to deceive the court in presenting her erroneous con-           the date of discovery should be February 1996.
clusion in setting the date of discovery as late as                  My attorney had to ask an off-island specialist in
February 1996, the date she ceased to see me(8-11).             appellate court to write an appellee’s brief on December
     I thought five months’ ordeal was finally over. I had      31, 1997.
been under tremendous stress going through the self-                 The rebuttals were:
analysis of what I had done wrong that the plaintiff ’s         1. The date of discovery in bodily injury was clearly not
lawyer sought to make a fortune out of me. On many                 later than January 1995. The plaintiff’s attorneys tried
occasions, I was discouraged and deeply depressed. My              to fool the court by stretching her outpatient visits as
performance as the neurologist had waned. The ordeal               continuation of problems from her hospital days.
had overturned my self-confidence and stirred up a self-        2. Dr. X could not tell the difference between genuine
doubt from the deepest foundation of my conscience. It             seizure, psychogenic seizure, and myoclonic seizures.
seemed that my forty years’ specialty practice, continu-           That was why he kept telling the plaintiff continued to

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

   have ‘status epilepticus’ extending into 1996.                 who is mentally incompetent but not insane.
3. He discontinued Dilantin on April 1994 while she was        2. The fact that a guardian ad litem was appointed for
   in SNF and thus he had ever since been her private             plaintiff does not conclusively establish that she was
   physician. This was the exact reason why I did not fol-        incompetent.
   low up her. After discharge from SNF, the plaintiff         3. Even if the court holds that she is “insane” under the
   developed several seizures on February 1995 for                statue, her insanity did not exist at the time the cause
   which she was admitted briefly because Dr. X discon-           of action accrued.
   tinued her anticonvulsant. Strangely Dr. Sison referred     4. The appointment of a guardian ad litem ended any
   her to my clinic after dismissal from the hospital,            tolling of the statute of limitations.
   although he knew Dr. X was following her. Probably.         5. Even if Guam has a discovery rule for its medical
   Dr. Sison did not trust Dr. X.                                 malpractice statute of limitation, plaintiffs failed to
4. On June 15, 1994, the plaintiff asked for EEG tracing          timely file this action.
   done on 6/11/94 without explanation, and then, late         6. The continuing relationship rule has not been adopted
   on December 1994, without informing me, she took               in Guam. Even it does exist, it does not extend the
   off to HNL for further opinion. HNL was the home               statute of limitations in this case, because the plain-
   base of plaintiff’s ambulance drivers                          tiffs were not relying totally on the defendant after
5. The HNL visit confirmed she had cortical blindness             June of 1994 and defendant did not provide continu-
   and visual hallucination, but could not confirm that           ous treatment for Teresita.
   status epilepticus on March 27, 1994 was the cause.         7. Exception for continuous negligent treatment, which
     I attended the hearing by three Supreme Court                causes continuing damage, has not been adopted in
Judges on Judge Manibusan’s summary dismissal of the              Guam and, even if it does exist, it would not toll the
case on January 18, 1998. Each side was allowed fifteen           statue of limitation under the fact of this case.
minutes for arguments. My attorney very succinctly pre-
sented evidence that an appellant who could malinger           Appeal to the Ninth Circuit Court
was NOT insane, as that was the opinion of several US              As expected, on 4/17/98, the ambulance chasers filed
mainland expert consultants. The three judges asked no         another appeal to the 9th Circuit Court of Appeal in San
questions. Appellants’ attorney spent over 25 minutes in       Francisco(14). The mentality of the ambulance chasers was
argument, and when he was asked by one of the Judges           that they did not trust the judicial system of Guam. It
the legal bases for malpractice litigation to continue on a    entitled: “Petition for Writ of Certiorari”, a legal term no
la carte indefinitely whenever a new damage was discov-        body can understand, but for sure I had to spend more
ered, he was shaky and unable to answer. My attorney,          money in my defense. With the help of an Oregon attor-
however, cautioned me that there was a remote possibili-       ney specialized in argument at appellate court, a
ty that the plaintiff might appeal to the 9th circuit court    response to the petition for Writ of Certiorari was
in San Francisco.                                              received on 6/98. The Ninth Circuit Court response
     Supreme Court’s Decision on February 17, 1998,            upheld Guam Supreme Court’s decision(14).
affirmed the Superior Court’s decision(12,13). Yes, we won,
and the case was closed. My attorney congratulated me              The 9th Circuit Court’s conclusions were:
and said that this affirmed the landmark decision in the       1. Guam Supreme Court had the authority to interpret
history of Guam malpractice litigation.                           Guam Statute.
     In a 38-page Opinion, the Supreme Court ruled and         2. Plaintiff was not insane and Guam statue of limitation
affirmed the Trial Court’s grant of summary judgment to           was not tolled by her physical incompetence.
defendant:                                                     3. The Guam Supreme Court correctly applied the
1. Guam Code Annotated #11404 applies to tolling pro-             Discovery Rule.
   vision only those who are insane and not to anyone             Yes, I won again and it was final!

                                  Acta Neurologica Taiwanica Vol 18 No 3 September 2009

     There was no professional experience more exasper-         National Medical Practice Board to gear up enforcement
ating than for a physician to be involved in an unjust          of professional discipline, instead of policing by greedy
lawsuit against his professionalism. My attorney con-           lawyers? How good or competent is the jury system?
gratulated on me that it was all over. Well, I would like to    They are selected randomly from the community, who
believe it, for I was still shaking. Thank God that I have      are no necessarily knowledgeable in medicine and ethics.
endured the ordeal. The total legal expenditure was             What happened to the Tort Reform introduced by the
$60,000. Many of my colleagues and mentors who had              Congress years ago? Who would police the lawyers? It is
gone through the ordeals of malpractice lawsuits agreed         inconceivable that a good lawyer would go after their
with King Henry VI of medieval England, “The first              bad apples. The problem, which never goes away, is that
thing we do, lets kill all the lawyers”(1).                     any malpractice lawsuit, whatever the outcome, is not
     Dr. X’s setback in Deposition and Legislative over-        only expensive but also threats to physician’s profession-
sight hearing, and loss in this lawsuit made him overtly        al integrity(15). Not to mention personal adversity, which
attack UOG research center. The president of UOG                no body wants(16,17).
wrote a letter to him stating that if he continues to write          A reputable law professor claimed he has long sup-
derogatory letters and interfere with UOG research activ-       ported a no-fault medical malpractice compensation
ity, he was prepared to take a legal action. We have never      remedy and drafted such a remedy to the New York State
heard from Dr. X again. A Chinese proverb says, “A mad          Special Advisory Committee on Medical Malpractice in
dog frets beating”.                                             1976. What happened to that proposal? What would hap-
                                                                pen if the lawyers, and physicians alike, were paid by
                    DISCUSSION                                  hourly fees, not by a third or more of the award by the
                                                                jury? The trouble is that the legislators are lawyers, and
     I have endured the ordeal of this legal entanglement       there is no ‘conflict of interest’ in their dictionary. This
that lasted almost two years. I have no idea how long it        is a never-ending game of predator and prey(18).
would take if I lost this first battle. I have given serious
thoughts about the ramifications of malpractice in gener-                          CONCLUSION
al and myself in medical practice. My profession is sup-
posed to be one of the most admired and respected with               Once in my life time, I have learned important and
a noble mission to help sick people in need, but often          useful lessons:
ended up as a victim of predators.                              (1) Practice defensive medicine. Remember that when
     Prolonged entanglement of malpractice like this case           treating a seriously ill patient, always keep in mind of
has inflicted tremendous emotional stress on the defen-             possible future malpractice litigation when things
dant. Unless insurance company will devote to compre-               turn sour. Documents in terms of diagnosis, timing of
hensive defense strategy, it is a pain and suffering, men-          diagnosis and treatment, and informed consent for
tal anguish, loss of income as well as life-long saving if          any procedures must be done properly;
defeated in the trial. Enjoyment of life or commitment to       (2) Avoid factors that may provoke dissatisfaction, anger,
community welfare as a physician will no doubt be                   or frustration on the outcome of the illness;
affected while going through arbitration and trial court.       (3) “Know thy enemy” is an indispensable rule, which
Litigation amply sets forth more constraints on the                 may require research and private detective;
health providers and in the long-run restricts attempts to      (4) Keep ledger of ambulance chasers and good defense
national health care system reform.                                 attorneys, and all malpractice litigation in the
     There are many questions that no one seems to know             Medical Society files;
the answer. Who would protect physicians? How about             (5) Never be intimidated and surrender at the notification
Individual practitioner to go to law school? The local              from the court. Remember the accusation is nothing
medical association is usually powerless. How about the             but allegations, which can be contested or a threat in

                                   Acta Neurologica Taiwanica Vol 18 No 3 September 2009

    order to force defendant to settle out of court;               4. Guam Code. Title 7. Division 2. Section 12104. Disability
(6) Keep cool, study the allegation thoroughly, and                  including minor, insane, and incompetent person.
    search for defense tactics before sur render.                  5. Oversight hearing on the research for Lytico/Bodig on
    Understand that there will be long, painful process of           Guam before the Committee on Health, Welfare and Senior
    ‘discovery’ of the facts, which involves depositions             Citizens. The 23rd Guam Legislature, 1995:262.
    and consultations with experts in the field;                   6. Consultation Report by Dr. X. 48 pp. In: The Deposition in
(7) Prepare defense budgets, which may run astronomi-                the Superior Court of Guam, dated March 8, 1997. Civil
    cal;                                                             Case # CV1607-96.
(8) Set up trust fund for children in case the lawsuit is          7. Dr. X’s Affidavit to Plaintiff’s Attorney, dated March 21,
    lost. Otherwise, the life-long saving can be wiped               1997. 2 Pp. This was written two weeks after Dr. X’s depo-
    out;                                                             sition on March 8, 1997.
(9) Maintain a list of all “ambulance Chasers” at profes-          8. Decisions and Order. The Superior Court of Guam
    sional organizations as warning for the practitioners;           CV1607-96. April 8, 1997.
(10) Buy professional liability insurance. Though expen-           9. Decision and order in favor of defendant Kwang-Ming
      sive, it will save time in preparing for defense.              Chen, MD. and Associates. The superior Court of Guam
      Unfortunately, it was not available on Guam. Lastly;           CV1607-96, April 30, 1997.
(11) Medical school should adopt a curriculum in                  10. Amended Decision and Order in Favor of Defendant
      medicolegal education or CME in medicolegal                    Kwang-Ming Chen, MD. and Associates. The Superior
      classes by Medical Society.                                    Court of Guam. CV1607-96. June 5, 1997.
                                                                  11. Final Judgment in Favor of Defendant Kwang-Ming Chen,
             ACKNOWLEDGEMENT                                         MD. and Associates. The Superior Court of Guam.
                                                                     CV1607-96. August 26, 1997. 12. Appellee’s Brief of
   I am indebted to Prof. Rong-Chi Chen of National                  Defendant Kwang-Ming Chen, MD. and Associates. The
Taiwan University for editorial advices.                             Supreme Court of Guam. CVA 97-040, and 97-042.
                                                                     December 31, 1997.
                    REFERENCES                                    13. Supreme Court of Guam Opinion. CVA 97-040 and 97-042.
                                                                     April 18, 1999.
1. Shakespeare. King Henry VI, Part 2. New York. Cambridge        14. Response to Petition for Certiorari to the United States
   University Press, 1965.                                           Court of Appeals for the Ninth Circuit. April 17, 1999.
2. Guam Code. Title 7. Judicial and Civil Procedures.             15. Beresford HR. Neurology and the law: Private Litigation
   Division 2. Civil Actions. Chapter 11. Time for                   and Public Policy. Philadelphia, F. A. Davis, 1998:208.
   Commencing Action. Section. 11308. (1996). Action to           16. Vidmar N. Medical Malpractice and the American Jury:
   recover from damages. “Action to Recover Damages for              Confronting the Myths about Jury Incompetence, Deep
   Injuries. An action to recover damages for injuries to the        Pocket, and Outrageous Damage Awards. Ann Arbor, Univ.
   person arising from any medical, surgical or dental treat-        Michigan Press, 1995:318.
   ment, omission or operation shall be commenced within          17. Werth B. Damages: One Family’s legal Struggles in the
   one (1) year from the date when injury is first discovered”.      world of Medicine. New York, Solomon & Shuster, 1998:
3. Guam Code. Title 7. Judicial and Civil Procedures.                400. ISBN 0-684-80760-6.
   Division 2. Civil Actions. Chapter 11. Time for                18. Interested readers are referred to Frank Grad’s review in
   Commencing Action. Section 11404. (1996) “Exceptions              NEJM 1998;339:1561-2, and rebuttal by Paul Wining in
   for persons under disability”.                                    NEJM 1999;340:1214.

                                     Acta Neurologica Taiwanica Vol 18 No 3 September 2009

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